The purpose of this Bill is to narrow or remove exemptions
provided in the Sex Discrimination Act 1984 (the Act) for
certain specified legislation and regulations. The Bill is in
accordance with the Attorney-General's 1996 Review of permanent
exemptions in s40(2) and 40(3) of the Act.(1)

To give effect to certain provisions of the United Nations
Convention on the Elimination of All Forms of Discrimination
Against Women.(2)

To make unlawful discrimination on the grounds of sex, marital
status, pregnancy and potential pregnancy in the areas of
employment, education, accommodation, the provision of goods,
facilities and services, the disposal of land, the activities of
clubs and the administration of Commonwealth laws and program.

To make unlawful sexual harassment and discrimination on the
ground of family responsibilities in certain circumstances.

To promote recognition and acceptance within the community of
the principle of the equality of women and men.

Exemptions for acts done under Statutory
Authority

The Act also contains a range of provisions which exempt certain
activities from its operation. One of the principal provisions is
section 40, which exempts certain acts done under statutory
authority. Section 40 was included in the Act from the first stages
of drafting,(3) and among other things, initially provided a two
year exemption for acts done by a person in direct compliance with
a Commonwealth, State or Territory law or regulation as in force at
the commencement of the Act (1 August 1984). Section 40 also
provided permanent exemptions for certain specified
legislation.(4)

The aim of the two year exemption was to provide Commonwealth,
State and Territory governments a period to review discriminatory
legislation and where possible to align all legislation and
regulations with the Act.(5) At the expiration of the two year
period, it was intended that all Commonwealth legislation as in
force at the commencement of the Act and all State and Territory
legislation would be subject to the Act, unless the two year
exemption was extended by regulation(6) or the legislation was
subject to a permanent exemption.

In 1986, prior to the expiration of the two year exemption
period, the Government utilised the regulation making power to
begin implementation of a regime under which Commonwealth, State
and Territory legislation was exempted by regulation from the
operation of the Act.(7) Further regulations were made in 1987,
1988 and 1989 and although there was a steady reduction in the
number of exemptions provided for by regulation, many laws remained
exempt. (8)

In 1991, the Senate Standing Committee on Regulations and
Ordinances expressed strong concern at both the existence of this
broad regulation making power and the manner in which it was
exercised.(9) In particular, the Committee was concerned that the
continued process of exemption for Commonwealth, State and
Territory legislation by regulation contravened the principles that
delegated legislation must not breach the spirit of its parent Act
and must not contain matters more appropriate for Parliamentary
enactment.(10) Apropos of this concern, the Committee strongly
advised that the continued regime of the Executive exempting
discriminatory statutes by regulation cease.(11)

Consequently, the Sex Discrimination Amendment Bill 1991 was
introduced, which proposed repeal of the power to extend exemptions
to the Act by regulation.(12) The Bill included subsections 40(2)
and (3) which provided an indefinite statutory exemption for
specified legislation (discussion of this legislation is set out
below).(13) During the Senate Legal and Constitutional Affairs'
Committee's consideration of the Bill, the Australian Democrats
moved an amendment to the Bill to impose a statutory obligation on
the Attorney-General to review the operation of subsections 40(2)
and (3) before 1 June 1996.(14) The Review was to include a
recommendation as to whether the relevant permanent exemptions
should be repealed and copies of the Review were to be tabled in
both Houses of Parliament. The amendment received bipartisan
support(15) and was inserted as section 40A of the Sex
Discrimination Amendment Act 1991. (16)

Attorney-General's Section 40A Review of Subsections
40(2) and 40(3) of the Act

As required by section 40A the Attorney-General, the Hon. Daryl
Williams, finalised a review of statutory exemptions provided by
subsections 40(2) and (3) of the Act on 31 May 1996. The Review was
tabled in Parliament on 26 June 1996. (17)

The Review operated in accordance with the principle that where
possible all federal legislation should be consistent with the
objectives of the Act and there where exemptions to the Act are
necessary they should be strictly limited.(18)

What follows is a summary of the exempt legislation reviewed and
the Attorney-General's recommendations. As the Review notes, the
recommendations reflect consultations with the Norfolk Island
Government, relevant Commonwealth Ministers and the Sex
Discrimination Commissioner.

(i) Exemptions for Specific Taxation Law

Paragraphs 40(2)(a), (c), (d), (f) and (i) currently exempt
anything done by a person in direct compliance with the following
taxation legislation as in force on 1 August 1984:

Subsection 40(3) provides an exemption in relation to marital
status discrimination for anything done by a person in direct
compliance with any regulations, rules, by-laws, determination or
directions made under:

the Gift Duty Assessment Act 1941

the Income Tax Assessment Act 1936

the Sale Tax (Exemptions and Classifications) Act
1935.

These Acts were identified as appropriate for an exemption in
the Sex Discrimination Amendment Act 1991 following a
review of the discriminatory aspects of taxation legislation by the
Australian Taxation Office in the late 1980s.(19) This review
process was primarily sparked by the objectives of the Federal
Government's A Say, A Choice, A Fair Go: The Government'sNational Agenda for Women,(20) a blueprint for Government
policy and law reform to ensure progress towards women's
substantive equality in all spheres.(21) In relation to sex
discrimination, the National Agenda's action plan included
reduction of the number of exemptions to the Act.(22)

Many of the discriminatory provisions identified in the taxation
review process were amended in 1990 in accordance with sex
discrimination principles.(23) However, it was considered necessary
that certain discriminatory provisions remain.(24) The Income
Tax Assessment Act 1936, the Income Tax (International
Agreements Act) 1953 and the Taxation (Unpaid Company Tax
Assessment) Act 1982 contain provisions which employ terms
such as 'relative', 'associate' and 'dependent' which discriminate
on the ground of marital status. The aim of these provisions is to
ensure the efficacy of anti tax-avoidance provisions and to prevent
abuse of tax concessions.(25)

The Sales Tax (Exemptions and Classifications) Act 1935
also contains provisions which employ discriminatory categories of
'relation' and 'dependent'. These provisions are considered
necessary to effect international agreements.(26)

The Gift Duty Assessment Act 1941 also incorporates
discriminatory concepts. However, as it only applies to gifts made
before 1979 it is considered appropriate to finalise outstanding
assessment under this regime.(27)

The Attorney-General's 1996 Review considered the discriminatory
aspects of each exempted Act and identified that the only form of
discrimination occurring under the specified taxation legislation
was discrimination on the ground of marital status.

The Review concluded that continued exemptions for the specified
taxation legislation are necessary for the same reasons advanced
during debate of the Sex Discrimination Amendment Bill 1991.(28)
However, the Attorney-General recommended that the current general
exemption from the Act provided by subsection 40(2) be narrowed to
only exempt discrimination on the ground of marital status, in
order to properly reflect the ambit of exempt discrimination in
this area.

The exemption provided by subsection 40(3) is currently limited
to marital status discrimination and the Attorney-General's Review
recommended this exemption continue. However, the Review
recommended that the reference to the Gift Duty Assessment Act
1941 be repealed as the exemption is no longer required.

(ii) National Health Act 1953

Paragraph 40(2)(b) provides an exemption for anything done by a
person in direct compliance with the operation of:

(i) the definition of 'pensioner' in subsection 4(1) or

(ii) the definition of 'concessional beneficiary' in subsection
84(1)

of the National Health Act 1953 as in force on 1 August
1984.

The Attorney-General's Review notes that the reason for enacting
this exemption in the Sex Discrimination Amendment Act
1991 was that, for the purposes of the pharmaceutical benefits
scheme, the sex discriminatory definitions of 'pensioner' and
'concessional beneficiary' link to the sex discriminatory age
pension provisions under the social security regime. However, as
differential access to age pensions is being phased out, the Review
recommends that the existing exemption for the National Health
Act 1953 be 'sunsetted' to expire concurrently with the
expiration of sex differentiated access to age pensions on 1
January 2014.

(iii) Exemptions for Veteran's Affairs
Legislation

Paragraphs 40(2)(e) and (g) provide an exemption for anything
done by a person in direct compliance with the following
legislation as in force on 1 August 1984:

the Papua New Guinea (Members of the Forces) Benefits Act
1957

the Seaman's War Pensions and Allowances Act
1940.

The Attorney-General's Review recommended repealing the
exemption for the first Act as it was no longer required. The
second Act was repealed in 1994.(29)

(iv) Social Security Act 1947

Paragraph 40(2)(h) provides an exemption for anything done by a
person in direct compliance with the Social Security Act
1947 as in force on 1 August 1984.

The operation of this exemption is ambiguous due to an apparent
drafting error in the Sex Discrimination Amendment Act
1991. When originally enacted, section 40 of the Act provided
a statutory exemption for the Social Security Act
1947.(30) The Social Security Act 1947 was repealed
and replaced by the Social Security Act 1991, which came
into operation on 1 July 1991. Transitional legislation (which came
into effect simultaneously) accordingly amended the Act so that it
referred to the Social Security Act 1991.(31) At the same
time, the Sex Discrimination Amendment Bill 1991 was progressed
through Parliament and amended section 40 so as to enact the
current subsection 40(2), including the reference in paragraph
40(2)(h) to the Social Security Act 1947. The Sex
Discrimination Amendment Act 1991 became operative on 1 August
1991 one month after commencement of the social security
legislation.

The legal impact of this sequence of events is open to doubt.
The Attorney-General's Review has not taken a position on the legal
status of the exemption.

The Attorney-General was assisted in the review of the social
security regime by a Steering Committee convened by the Sex
Discrimination Commissioner. The report of the Steering Committee
is attached to the Review and provides an analysis of the 'in
principle discrimination' in the social security regime. For
example, the Report identifies assumptions of dependency as an
important aspect of discrimination in social security. The report
further notes the difficulties of considering such discrimination
in isolation from other areas which incorporate similar
discriminatory dependency assumptions (for example taxation,
superannuation, student assistance). The Attorney-General has
referred the Steering Committee's Report to the Minister for Social
Security.

The Government will report to Parliament before 26 June 1997 on
the areas of 'in principle discrimination' identified by the
Steering Committee and on the appropriate action to be taken in
relation to the exemption in paragraph 40(2)(h) for the Social
Security Act 1947.(32)

(v) Exemption for Norfolk Island
Legislation

Paragraph 40(2)(j) provides an exemption for anything done by a
person in direct compliance with the Social Services Act
1980 of Norfolk Island as in force on 1 August 1984.

The Attorney-General's Review notes that the general exemption
for the Norfolk Island Social Services Act 1980 was
included in the Sex Discrimination Amendment Act 1991 to
cover sex differentiated access to age pensions and marital status
discrimination in relation to determining the rate of benefit for
certain forms of social security. The Government of Norfolk Island
has requested that the general exemption currently provided by the
Act be narrowed to specifically cover these areas.

Proposed subsection 40(2A) provides an exemption for
discrimination on the ground of marital status for anything done by
a person in direct compliance with the following taxation
legislation as in force at 1 August 1984:

the Gift Duty Assessment Act 1941

the Income Tax Assessment Act 1936

the International Tax Agreements Act 1953

the Sale Tax (Exemptions and Classifications) Act
1935

the Taxation (Unpaid Company Tax) Assessment Act
1982.

Proposed subsection 40(2B) provides a limited general exemption
for anything done by a person in direct compliance with the
Social Services Act1980 of Norfolk Island as in
force on 1 August 1984 in two circumstances:

in relation to sex discrimination in the determination of age
pensions; and

in relation to marital status discrimination in the
determination of the rate of social security benefit payable to
single and married persons.

Proposed subsection 40(2C) provides a sunset clause for the
current general exemption in paragraph 40(2)(b) for the definition
of 'pensioner' and 'concessional beneficiary' in the National
Health Act 1953. The exemption will expire on 1 January 2014,
pursuant to the phasing out of sex differentiated age pensions.

Item 3 omits the current exemption for marital
status discrimination where a person acts in direct compliance with
any regulations, rules, by-laws, determinations or directions under
the Gift Duty Assessment Act 1941.

In a detailed study of Australian anti-discrimination law,
Professor Margaret Thornton has argued that although such law
represents a halting step towards the formal recognition of
inequality, it nevertheless 'is riddled with weaknesses in respect
of both substance and procedure'.(33)Professor Thornton considers
that a key weakness in relation to Federal sex discrimination law
is the numerous exemptions and exceptions to the Act. In relation
to 40(2) and (3) specifically, Professor Thornton notes that

'[t]he exception accorded acts done
under statutory authority has been potentially one of the most
devastating ... the usual principle of statutory construction in
which the most recent enactment overrules the former, has been
waived in some legislation. The subordinate status of
anti-discrimination legislation reveals quite unequivocally that
certain legislatures did not intend that their anti-discrimination
legislation should be taken as seriously as other legislation.'(34)
</ ul>

The Bill's aim of removing or further limiting exemptions for
unjustifiable sex discrimination in specified legislation reflects
the spirit of the Act. Historically, this aim has generally
received Parliamentary support. For example, when the Australian
Democrats proposed the section 40A statutory review of the
exemptions provided in subsections 40(2) and (3), bipartisan
support was given for the objective of ensuring that exemptions to
the Act be limited. (35) In light of relevant inquiries which have
touched on the operation of the Act, it appears that many
individuals and community groups also consider removing exemptions
to the Act as highly desirable.(36)

The Bill will primarily have a formal effect. Except for the
sunsetting of the exemption provided for the National Health
Act 1953, the amendments are consistent with current
practice.

No further statutory review of the exemptions provided for
specified legislation in subsections 40(2) and (3) is provided for
in the Bill.

Williams AM QC MP, the Hon. Daryl, Review by the
Attorney-General of the Operation of Subsections 40(2) and 40(3) of
the Federal Sex Discrimination Act 1984, 1996. The Review was
tabled in Federal Parliament on 26 June 1996.

The Convention was signed by Australia in 1980 and ratified in
1983. It entered into force in Australia on 27 August 1983.

Sex Discrimination Commissioner, Report on Review of
Permanent Exemptions under the Sex Discrimination Act 1984,
1992: 104. For the history of section 40, see Williams, op cit:
3-6.

Subsection 40(2) provided a permanent exemption for anything
done by a person in direct compliance with the following
legislation as in force at 1 August 1984:

Section 40(3) Nothing in Division 1 or 2, as applying
by reference to section 6 [marital status discrimination] affects
anything done by a person in direct compliance with any
regulations, rules, by-laws, determinations or directions made
under the Gift Duty Assessment Act 1941, the Income
Tax Assessment Act 1936 or the Sales Tax (Exemptions and
Classifications) Act 1935.

House of Representatives Standing Committee on Legal and
Constitutional Affairs, Half Way to Equal: Report of the
Inquiry into Equal Opportunity and Equal Status for Women In
Australia, 1992: 238-9; Sex Discrimination Commissioner, op
cit: 112-114.

This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.

PRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
the public.

Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.

Published by the Department of the Parliamentary Library,
1996.

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Commonwealth of Australia
Last updated: 2 December 1996